Using Laws to Pursue Social Justice

By Janlee Wong

In 1968, another landmark civil rights act was passed. The Fair Housing Act of 1968 prohibits discrimination in the sale and rental of housing and in mortgage lending on the basis of race, color, national origin, religion, sex, familial status, or handicap.

At the time and continuing decades later, overt racial discriminatory language and policies could be found in housing and mortgage policies. As these policies were challenged and overturned, discrimination continued but went underground in the form of “disparate impact.”

The disparate impact theory posits that laws or policies that may not be openly discriminatory in wording or intent but have an adverse impact on members of protected classes. This interpretation allowed courts to include “disparate impact” in their rulings as to whether housing policy was violating the Fair Housing Act.

Enter the court challenge based on the case of the Texas Department of Housing and Community Affairs v. The Inclusive Communities Project, Inc. The Japanese American Citizens League (JACL) published the following description of the case:

“In Texas Department of Housing and Community Affairs, the Inclusive Communities Project is alleging that the Texas Department of Housing and Community Affairs disproportionately approved federal housing tax credits in minority concentrated neighborhoods and disapproved them in predominately Caucasian areas, thereby causing a concentration of low cost housing in minority areas and perpetuating segregated housing patterns in Dallas, Texas. Specifically, ICP argued that this discriminatory effect constituted a violation of the Fair Housing Act under the disparate impact theory. Amicus curiae briefs in support of ICP and the applicability of the disparate impact theory under the Fair Housing Act have also been filed by the U.S. Solicitor General, current and former members of Congress, and organizations including the ACLU and NAACP Legal Defense Fund.”

The case is now before the U.S. Supreme Court and some believe the strict constructionists on the court will rule in favor of the State of Texas because there is no overt discriminatory language in their policies and the Fair Housing Act does not contain prohibitions on “disparate impact.”

Hence we see that social justice cannot be achieved solely by anti-discrimination laws which rely on wording and are subject to interpretation. Ironically, one solution to this problem if the Court rules in favor of the State of Texas would be to amend the Fair Housing Act to include “disparate impact.”

If it comes to this, social workers could be helpful in providing supporting information about the impact of disparity. What we may not have is a Congress that will support this type of legislation and a President like Lyndon Baines Johnson with the acumen and skill to get it through our current conservative Congress.